38
142. As this Court has already determined, the petition for habeas corpus filed by
Gustavo Cesti Hurtado fulfills all the requirements set forth in the Convention, which
establishes an appropriate method to ensure the liberty of the affected person. Once
Gustavo Cesti Hurtado sought and obtained the pertinent remedy, the existence of
other remedies became irrelevant – even if it could be shown that they were equally
effective.
143. As a result of the refusal of the military authorities to obey and execute the
legitimate order of the Public Law Chamber and of the subsequent detention,
prosecution and sentencing of Gustavo Cesti Hurtado, the State violated his right to
personal liberty as guaranteed in Article 7(1), (2) and (3) of the Convention.
XI
VIOLATION OF ARTICLE 8(1) AND (2)
144. As stated by the Commission in the text of the application, since Gustavo
Cesti Hurtado is considered a retired member of the armed forces, with no military
function, Peruvian legislation considers him a private citizen. Moreover, under
Peruvian legislation, the service contract between Gustavo Cesti Hurtado’s firm and
COLOGE does not constitute a relationship that would justify treating the victim as a
member of the armed forces. Consequently, submitting Gustavo Cesti Hurtado to an
action before military judges would constitute a liberal interpretation of the military
jurisdiction and would violate his right to be submitted to a competent judge and
jurisdiction and his right to be judged by an impartial judge.
145. The Commission also argued that the State continued to violate the rights of
the victim by persisting in the action under the military justice system and
pronouncing a judgment that did not result from a due process and that, if there was
a complaint about the victim’s conduct, the State had the obligation to file the
corresponding charge under the ordinary jurisdiction. The Commission concluded
that none of the results of the proceeding against Gustavo Cesti Hurtado under
military jurisdiction “should have juridical effect”.
146. In this respect, Peru stated in its answer to the application that Gustavo Cesti
Hurtado
did not lose his military status and, anyway he was in the reserve when he performed
functions in the Logistics Command of the Army, responsible for the insurance area, so
that, according to Article 168 of the Constitution of Peru, he was subject to “the
respective laws and regulations”, one of which is the Code of Military Justice, and
pursuant to the latter he was prosecuted and sentenced.
The State added that the crime for which Gustavo Cesti Hurtado was accused had
been carried out against military finances and in connivance with officers on active
duty, that it was committed when he performed functions in COLOGE and when he
was subordinate to the General Officer who commanded this unit and, moreover,
that he had an office and authorized access. Therefore, Peru believes that the organ
that issued the order of arrest against Gustavo Cesti Hurtado was competent to do
so and its competence was not invalidated or disputed, so that there was a statutory
extension of jurisdiction.
147. Furthermore, the State asserted that the proceedings against Gustavo Cesti
Hurtado respected the Constitution, the Organic Law of Military Justice and
procedural principles that offer full guarantees “to both the defendant and the
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